DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06/21/26 has been entered.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-3 and 5-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chilson (US 2015/0047110) in view of Muskovitz (US 8,256,032).
In regard to claim 1, Chilson teaches a helmet (helmet: 100) comprising: at least a cellular energy-absorbing insert (second shock absorbing insert: 126); a foam liner comprising at least one recess shaped to accommodate the at least one cellular energy-absorbing insert (foam liner/shock absorbing liner: 130 and figures 4 and 5 and recessed portions of 103 in figures 4 and 5); the foam liner also comprises at least one vent (vents: 109, figures 1, 2, 4 and 5).
However, Chilson fails to teach a protective layer attached to the foam liner in correspondence of a bottom of said at least one recess, wherein the protective layer is configured such that no cell of the at least one cellular energy-absorbing insert is completely visible through the at least one vent when viewed from outside of the helmet.
Muskovitz teaches a protective layer (shield: 20) attached to a foam liner (liner: 18) in correspondence of a bottom of a recess (see recess in liner 18: figure 10), wherein the protective layer (20) is configured such that no portion of the at least one cellular energy-absorbing insert (insert: 26) is completely visible through the at least one vent when viewed from outside of the helmet (see figure 10 and column 11, lines 63-65).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the helmet of Chilson with the attached vent cover/protective layer of Muskovitz, since the helmet vent of Chilson provided with a vent cover/protective layer attached to the bottom of the vent opening attached to the foam liner (130) would provide a vent that can be opened and closed based upon comfort and air flow desired covering and uncovering the cells of the cellular layer as desired.
In regard to claim 2, Chilson teaches wherein the cellular energy-absorbing insert comprises a plurality of interconnected open cells configured to absorb energy by plastic deformation in response to a longitudinal compressive load applied to said cells (cellular energy-absorbing insert: 126, paragraph 0014 detailing honeycomb structure of insert).
In regard to claim 3, Chilson teaches wherein each cell comprises a tube having sidewall/s and a longitudinal axis, and the cells are connected to each other through their sidewalls (cellular energy-absorbing insert: 126, paragraph 0014 detailing honeycomb structure of insert).
In regard to claim 5, the combined references teach wherein protective layer is a sheet (Muskovitz teaches the protective layer/shield: 20, column 11, lines 32-41).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the helmet of Chilson with the vent cover/protective sheet layer of Muskovitz, since the helmet vent of Chilson provided with a vent cover/protective sheet layer would provide a vent that can be opened and closed based upon comfort and air flow desired.
In regard to claim 6, Chilson teaches wherein cellular energy-absorbing insert has synclastic properties (see figures 4 and 5 the cellular insert: 126 is dome shaped, which makes it has synclastic properties).
In regard to claim 7, Chilson teaches wherein the cellular energy-absorbing insert is configured to provide an improved shock absorbing protection as compared with the foam liner (paragraph 0014 detailing honeycomb structure of insert is more shock absorbing than liner 130).
In regard to claim 8, Chilson teaches wherein the foam liner is made of a polymeric expanded foam (foam liner: 130, paragraph 0014 details EPS).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3 and 5-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6, and 13-15 of copending Application No. 19/157,363 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because they both claim a helmet with cellular insert, foam liner, vent and protective layer/insert.
Claim 1 of Current Application:
A helmet comprising: at least a cellular energy-absorbing insert (see line 2 of claim 1 of 19/157,363); a foam liner comprising at least one recess shaped to accommodate the at least one cellular energy-absorbing insert (see lines 3-4 of claim 1 of 19/157,363); the foam liner also comprises at least one vent see lines 3-4 of claim 1 of 19/157,363); a protective layer attached to the foam liner in correspondence of a bottom of said at least one recess (see claim 4 of 19/157,363), wherein the protective layer is a continuous layer that crosses and closes the at least one vent (see claim 6 of 19/157,363) and the protective layer is configured such that no cell of the at least one cellular energy-absorbing insert is completely visible through the at least one vent when viewed from outside the outside (see claims 1, lines 7-8 detailing that the vent is partially closed and claim 1, lines 5-7 detailing micro-holes that would allow for partial visibility of the cells).
Claim 2 of the instant application is the same as claim 2 of 19/157,363; Claim 3 of the instant application is the same as claim 3 of 19/157,363; Claim 3 of the instant application is the same as claim 3 of 19/157,363; Claim 5 of the instant application is the same as claim 6 of 19/157,363, except the instant application claim has amended out “layered over the recess of the foam liner; Claim 6 of the instant application is the same as claim 13 of 19/157,363; Claim 7 of the instant application is the same as claim 14 of 19/157,363; Claim 8 of the instant application is the same as claim 15 of 19/157,363.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 06/21/26 have been fully considered but they are not persuasive.
Applicant remarks that Chilson in view of Pritz fails to teach the protective layer attached to the foam liner in correspondence of a bottom of said at least one recess, such that no cell of the insert is completely visible.
The reference to Muskovitz (US 8,256,032) has been used in the rejection in place of Pritz to teach the protective layer attachment as detailed above in the rejection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA L HOEY whose telephone number is (571)272-4985. The examiner can normally be reached M-F: 9:00-5:30 EST.
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ALISSA L. HOEY
Primary Examiner
Art Unit 3732
/ALISSA L HOEY/ Primary Examiner, Art Unit 3732
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